Changi Vs. Manni and anr. - Court Judgment

LegalCrystal Citation

legalcrystal.com/471317

Subject

Criminal

Court

Allahabad High Court

Decided On

Dec-20-1976

Judge

H.N. Seth, J.

Reported in

1977CriLJ883

Appellant

Changi

Respondent

Manni and anr.

Excerpt:.....a case under section 125, in accordance with a compromise or for making an order in terms of compromise, does not lie, the concerned party can certainly set up the compromise as providing sufficient cause for not complying with the order made under sub-section (1) of section 125. in case the magistrate is satisfied that a proper compromise was arrived at between the parties, and it was because of it that the party ordered to pay maintenance did not pay the samp, it would be open to him to conclude that there was sufficient cause for non-payment of the amount awarded under this section and he can reject the application for enforcement of the order made under section 125(1) on this ground......bindki dated 22nd july, 1974. and the revisional order passed by the additional district & sessions judge, fatehpur dated 4th may, 1970 be quashed.2. smt. changi moved an application under section 488 cr.p.c. claiming maintenance for herself and her minor daughter. that application was allowed by an order dated 8th december, 1909. revision application filed against the order was also dismissed on 4th may, 1970. the applicant then moved an application for enforcement of the order granting maintenance to her and to her daughter. during the course of enforcement proceedings, it is said, a compromise petition was filed on 22nd july, 1974 and on the same date, the learned magistrate made an order stating that the case was decided in terms of compromise and that the compromise shall.....

Judgment:ORDER

H.N. Seth, J.

1. Smt. Changi has filed this application under Section 438 of the Cri.P.C. praying that the order of the Sub-divisional Magistrate, Bindki dated 22nd July, 1974. and the revisional order passed by the Additional District & Sessions Judge, Fatehpur dated 4th May, 1970 be quashed.

2. Smt. Changi moved an application under Section 488 Cr.P.C. claiming maintenance for herself and her minor daughter. That application was allowed by an order dated 8th December, 1909. Revision application filed against the order was also dismissed on 4th May, 1970. The applicant then moved an application for enforcement of the order granting maintenance to her and to her daughter. During the course of enforcement proceedings, it is said, a compromise petition was filed on 22nd July, 1974 and on the same date, the learned Magistrate made an order stating that the case was decided in terms of compromise and that the compromise shall form part of his order. Subsequently, the applicant moved an application dated 5th August, 1974, alleging that the said order accepting compromise be set aside as it was based on fraud and misrepresentation. The learned Magistrate, however, by his order dated 14th July, 1975, declined to recall his earlier order dated 22nd July, 1974. Being aggrieved, the applicant went up in revision before the learned Sessions Judge, Fatehpur.

3. Before the Sessions Judge, the opposite party took the preliminary objection with regard to the maintainability of the revision. The Sessions Judge, however, repelled that objection and proceeded to decide the revision application on merits. He came to. the conclusion that it was competent for the Magistrate to record the compromise arrived at between the parties and to dispose of the case in accordance with it He, however, declined to go into the question as to whether the compromise had been arrived at by practising fraud and misrepresentation and held that it was not open to the revisional court to go into that question. According to him, the applicant could file a civil suit for getting of the compromise arrived at between the parties, declared as invalid. So long as the compromise stood, no exception could be taken to the order of the Magistrate recalling his earlier order datel 22nd July, 1974. In the result, he dismissed the revision application. The applicant has now come up before this Court.

4. First point raised on behalf of the applicant is that neither under Section 488 of the old Code of Criminal Procedure nor under the corresponding Section 125 of the new Code of Criminal Procedure, is there any provision for deciding an application made under that section on the basis of a compromise arrived at between the parties. The learned Magistrate, accordingly acted without jurisdiction in recording the compromise said to have been arrived at between the parties and in deciding the proceedings on its basis.

5. Sub-section (1) of Section 125 lays down the circumstances in which the person who has failed to maintain his wife or minor child can be directed to pay maintenance. Sub-section (3) thereof, then provides that in a case where the person directed to pay maintenance fails to pay it the amount of maintenance can be recovered at the instance of wife or the minor child in the manner provided therein. Sub-section (4) lays down the circumstance in which a wife becomes disentitled to receive maintenance and Sub-section (5) provides for cancellation of an order for payment of maintenance already made. The scheme underlying the section indicates that so long as the order directing payment of maintenance under Sub-section (1) stands or the conditions mentioned in Sub-section (4) disentitling a wife to receive the same, do not come to exist, it has to be enforced at the instance of the persons entitled to receive the same, in the manner provided in Sub-section (3) of Section 125. There is no provision in Section 125 like that contained in 0. 23 of the C.P.C. which enables the Magistrate to dispose of an application for maintenance made under Section 125 of the Code of Criminal Procedure or an application for the enforcement of order made thereunder, in accordance with a compromise.

6. However, Sub-section (3) provides for the enforcement of an order made under Section 125 only if the person concerned has failed to comply with the order without sufficient cause. Accordingly, even though an application for deciding or disposing of a case under Section 125, in accordance with a compromise or for making an order in terms of compromise, does not lie, the concerned party can certainly set up the compromise as providing sufficient cause for not complying with the order made under Sub-section (1) of Section 125. In case the Magistrate is satisfied that a proper compromise was arrived at between the parties, and it was because of it that the party ordered to pay maintenance did not pay the samp, it would be open to him to conclude that there was sufficient cause for non-payment of the amount awarded under this section and he can reject the application for enforcement of the order made under Section 125(1) on this ground. Before, however, the Magistrate refuses to enforce the order of maintenance he has to find that the cause shown for not paying the amount is sufficient and for this purpose he has also to investigate as to whether the cause set up exists or not. It is obvious that if the compromise relied upon has been arrived at by practising fraud or misrepresentation, it cannot provide sufficient cause for not paying the maintenance in accordance with the order made by the Megistrate. It may be taken that when in this case the Magistrate disposed of the proceedings for enforcement of the order of maintenance in accordance with the terms of the compromise, he felt that a genuine compromise had been arrived at and that there was sufficient cause for the person concerned not to pay the amount as directed by the court and he was justified in not enforcing the recovery. However, the applicant had impugned that order before the revisional court. The revisional court ought to have given him an opportunity of showing that the conclusion of the Magistrate that the parties had worked out a valid compromise because of which the opposite party was justified (i.e. there was sufficient cause) in not paying the amount as directed by the court was erroneous. In my opinion, the question whether there was sufficient cause for not complying with an order made under Section 438/125 of the Code, was for the criminal court to decide and the learned Sessions Judge was not justified in refusing to go into this question and in observing that it is for the applicant to get the compromise agreement declared invalid by a competent civil court and that so long as it is not done, the order cannot be enforced. In case, the Sessions Judge finds that there is force in the submission of the applicant that the compromise set up by the opposite party was vitiated by fraud, etc., he has ample jurisdiction to interfere with the orders dated 22nd July, 1974 and 14-7-1975 passed by the Magistrate, on the ground that the Magistrate had erred in refusing to enforce an order made under Section 488 of the old Cr.P.C. or that made under Section 125(1) of the New Code of Criminal Procedure.

7. In the result, this application succeeds and is allowed. The order of Sessions Judge dated 4th May, 1976 dismissing the revision filed by the applicant is set aside. The Sessions Judge is directed to readmit the revision application filed by the applicant to its original number and to decide the same afresh in the, light of observations made above.